TMI Blog2017 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable and is liable to be quashed. In the result, the instant application is partly allowed. The impugned order only to the extent that it summons the applicant to stand his trial for an offence punishable under Section 420 IPC is quashed. The rest of the order by which the applicant has been summoned to stand trial for an offence punishable under Section 138 of the Negotiable Instruments Act is upheld. The Magistrate would proceed with the complaint under Section 138 of the Negotiable Instruments Act in accordance with law and conclude the trial in accordance with provisions of Section 143 (2) &(3) of the Act. Interim order dated 15.12.2004 stands vacated. - Application U/S 482 No. 14336 of 2004 - - - Dated:- 1-12-2017 - Hon'ble J.J. Munir, J. For the Applicant : Neeraj Pandey,G.S. Chaturvedi For the Opposite Party : Govt. Advocate ORDER The applicant Alok Rajgardia is the drawer of a bounced cheque and has been summoned by the learned XIIIth Additional Chief Judicial Magistrate, Room No. 46, Agra vide order dated 29.04.2004 to stand his trial for an offence punishable under Section 138 Negotiable Instruments Act. The aforesaid orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd dated 12.09.2002 worth of ₹ 50,00,000/- drawn on Canara Bank, Belanganj, Agra to discharge the company's liability and debt due on account of the loan as aforesaid. The Drawer deposited the said cheque in account maintained with Central Bank of India, Agra for collection but the cheque was returned dishonoured by the Drawer's Bank with a remark Funds Insufficient on 13.09.2002. The Payee received information about the dishonour from his bank on 14.09.2002. The Payee upon receipt of intimation of dishonour of the cheque in question sent notices dated 28.09.2002 by registered post to the four accused arrayed in the Complaint which includes the company, M/s Radhika Automobiles Pvt. Ltd, and, the Drawer, besides his brother and father, that were served upon the Drawer on 01.10.2002. It is averred in the Complaint that despite service of notice within 15 days of intimation of dishonour of the cheque and expiry of the period of 15 days required by law from date of service of notice on the Drawer, the Drawer failed to make good the ₹ 50,00,000/- due on the dishonoured cheque, and, till the date of the Complaint. The Complaint was accompanied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order has been passed against the applicant which is illegal. Issue notice to O.P. No. 2 to file counter affidavit within six weeks. List thereafter in the next cause list. Till then, the further proceedings of complaint case no. 3020 of 2004, M/s S.E. Investments Ltd. Vs. Radhika Automobiles Pvt. Ltd. And others, under Section 138 of Negotiable Instruments Act and Section 420 I.P.C., pending in the court of XIII A.C.M.-Room No. 46, Agra shall remain stayed against the applicant only. It may be noticed here that this Court while passing the interim order dated 15.12.2004 ordered the instant Criminal Misc. Application to be connected with Criminal Misc. Application No. 13431 of 2004 which is directed against the impugned order but at the instance of co-accused Ashok Rajgardia and K.L. Rajgardia who have been summoned for an offence punishable under Setion 420 IPC alone. Notice issued to the Payee by this Court was served upon them as would appear from the Office report dated 26.02.2005 but no appearance has been put in on their behalf. This Court, accordingly, by an order dated 09.03.2005 granted further time to the Payee to file a counter affidavit and ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed on 29.04.2004. Thus, by the time the complainant's evidence came to be recorded the provisions of Section 145 Negotiable Instruments Act had come to be enacted dispensing with the need to have that evidence recorded on oath in the witness box under Section 200 Cr.P.C. The impugned order was passed thereafter. The question, therefore, that falls for determination is: 'whether the provisions of Section 145 Negotiable Instruments Act would be applicable retrospectively to proceedings pending on the date when provisions of the Act No. 55 of 2002 came into force, that is to say, on 06.02.2003?' The submission of Sri Neeraj Pandey pressed with much vehemence is that the provisions of Act No. 55 of 2002 would not apply retrospectively to pending complaints, particularly, as the provisions of Section 138 Negotiable Instruments Act are penal in nature, do not hold much substance, the issue being set at rest from what appears to be one of the early decisions rendered after a very copious and searching analysis by the Bombay High Court in Peacock Industries Limited others vs. Budhrani Finance Ltd others reported in 2007(1) Crimes 271 where the question involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. The Legislature is competent to legislate on a class of offences and to provide separate procedure to deal with the same. He then submitted that in view of the non-obstante clause in Section 145, the provisions of the Code cannot have any bearing, and their inapplicability cannot be seen as a denial of a substantive right. 34. This Court in M/s.Indraprastha Holdings Ltd. (supra) has considered the very question whether the provisions of the Negotiable Instruments Act, 1881 as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 are applicable to the complaints under Section 138 of the Act which are pending on the date on which the Amending Act came into force. While dealing with the said question several judgments of the Supreme Court including the judgment in the case of Hitendra Thakur (supra), on which heavy reliance was placed upon, the learned Single Judge held that most of the provisions inserted by the Amending Act of 2002 and in particular Section 145 are purely procedural in nature and there is nothing in the Amending Act to indicate that the provisions therein were intended to apply prospectively. The said judgment also quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ban on to its retrospectivity. It is against this backdrop the provisions contained in Section 145 cannot be said to have prospective effect and it must operate retrospectively. It was thus held in re Peacock Industries Limited (supra) by the Bombay High Court that the provisions contained under Section 145 of Negotiable Instruments Act do not have prospective effect and must be held to operate retrospectively. The very elaborate and wholesome treatment of the issue would not leave anything for this Court to take a different view but before this Court would enter its respectful agreement to the view expressed by the Bombay High Court, there is to guide an authoritative pronouncement by the Supreme Court in M/s Mandavi Co-op Bank Ltd. v. Nimesh B. Thakore reported in JT 2010(1) SC 259 where in paragraphs-28 29 of the report, it has been held thus: 28. Mr. Ranjit Kumar also made a feeble attempt to contend that the provisions of sections 143 to 147 inserted in the Act with effect from February 6, 2003 would operate prospectively and would not apply to cases that were pending on that date. The High Court has considered the issue in great detail and has rightly taken the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced subsequent to the filing of the complaint by Act No. 55 of 2002 with effect from 06.02.2003. The said provision is available to a complainant whose complaint was pending on the date when the Section 145 Negotiable Instruments Act last mentioned came into force. Thus, the submission of Sri Neeraj Pandey that the provisions of Section 145 of the Negotiable Instruments Act introduced through Act No. 55 of 2002 with effect from 06.02.2003 cannot have retrospective operation and , therefore, would not apply to pending cases is not fit to be accepted. The second limb of challenge to the impugned order is to the effect that the Magistrate could not have summoned the applicant for an offence punishable under Section 420 IPC based an affidavit evidence of the Drawer taken on record in place of his evidence in the dock on oath under Section 200 Cr.P.C. Sri Pandey contends that the special procedure envisaged under Section 145 Negotiable Instruments Act is available only to the complainant who invokes the provisions of Section 138 of the said Act. The said provisions would have no application in cases of offences other than Section 138, and, surely not to an offence punishable under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the opinion of the Court, the said special procedure cannot be utilized or invoked by a complaint, the Drawer, in this case, to prosecute the accused for an offence under Penal Code; in this case, the Payee under Section 420 IPC. Thus, the impugned order summoning the applicant to stand his trial for an offence punishable under Section 420 IPC on the basis of affidavit evidence received by the learned Magistrate with the aid of Section 145 of the Negotiable Instruments Act is manifestly illegal and cannot be sustained. Thus, the impugned order in so far as it relates to summoning the applicant for an offence punishable under Section 420 IPC is not sustainable and is liable to be quashed. In the result, the instant application is partly allowed. The impugned order only to the extent that it summons the applicant to stand his trial for an offence punishable under Section 420 IPC is quashed. The rest of the order by which the applicant has been summoned to stand trial for an offence punishable under Section 138 of the Negotiable Instruments Act is upheld. The Magistrate would proceed with the complaint under Section 138 of the Negotiable Instruments Act in accordance with law ..... 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